PRODUCTS LIABILITY: A SYNOPSIS The endeavor of products liability law is to allocate the costs of inju- ries caused by defective products between manufacturers or sellers and consumers. Judical formulae which have been devised to effect this allo- cation have undergone and will continue to undergo modifications as pressure is applied by one side or the other. If the allocation process is viewed as a continuum, the doctrine of caveat emptor represents that end of the continuum most favorable to sellers in that the risk of injury is placed entirely upon the buyer or consumer. Strict liability represents the other end of the continuum, as that continuum is delineated by cur- rent jurisprudence, and places much of the cost of injuries from defective products upon the seller or manufacturer. The purpose of this presenta- tion is to review the current theories of recovery which are available to the consumer who is injured by a defective product. A basic tenet of common law is that losses should be -borne by the person who incurs them unless there is some valid reason for shifting the loss to another. A theory or legal justification is a prerequisite to the transfer of a loss. Today there are three such theories available to the plaintiff in a products liability case: first the theory of negligence by the defendant, and second the breach of a commercial code warranty by the defendant, and third, the theory of strict tort liability. The initial portion of the discussion will be devoted to a brief overview of the scope and lim- itations of these three theories as they relate to products liability. A second basic principle of the common law is that the plaintiff has to prove his case. Unless this is done, a favorable theory will be of little assistance to a plaintiff in his effort to transfer his loss to the defendant. The differences in the proof requirements of the three theories of product liability will comprise the second and third parts of the discussion. I. THE PLAINTIFF'S THEORIES OF RECOVERY A. Negligence The theory of negligence is one step removed from the doctrine of caveat emptor. Under negligence law the seller must exercise care to as- sure that the goods which he sells do no harm to the buyer.' This obli- gation to exercise care is often called a duty of care. If the seller does not exercise the requisite amount of care, he will have breached his duty, and if damages are suffered by the defendant as a result of that breach the plaintiff is liable. This imposition of a duty of care upon the seller rep- resents a departure from -the original rule of caveat emptor. In recogni- tion of that fact the courts historically held a seller liable only for harm 'W. PROSSER, LAw OF ToRTs 648 (3rd ed. 1964). 551 OHIO STATE LAW JOURNAL [Vol. 30 done to buyers. The existance of a contract between the buyer and the seller constituted the judicial justification for the deviation from caveat emptor2 Subsequently, the seller's duty was expanded to include a duty of care for the benefit of the general public, if the article he sold was "in- herently" dangerous, presumably upon the theory that the seller was in a better position to alleviate the harm. This was the rule until 1916 when MacPherson v. Buick Motor Company' defined inherently dangerous to include everything that was dangerous if negligently made, and in effect created a general duty of care to the public on the part of the seller. To- day a seller of goods is under an obligation imposed by law to exercise the care of a reasonable man to assure that the goods he produces do no harm to consumers.4 This brief -historical summary of negligence law indicates that there are two aspects to the problem of allocating losses. First there is the problem of delineating the class of persons who are to be relieved of losses. Historically, only immediate buyers from sellers could transfer their losses to the seller; today all forseeable consumers have access to that privilege. The second aspect of risk allocation, the criterion of liabil- ity, limits the ability to shift losses to sellers under negligence law. The standard imposed upon the seller under negligence law is only a duty to exercise ordinary care. Therefore if the seller exercises the required amount of care, the buyer may not recover. If the objective is to impose greater liability upon the seller for the losses incurred by consumers, the duty to exercise care must be replaced by a standard imposing liability in more absolute terms. Such a standard is available from another area of the law, but this standard has its own built-in limitations. B. Contractural Commercial Code Warranty A warranty is an affirmation or a promise. It is not a fault concept which will be satisfied if the seller puts forth his best effort. If the terms of the warranty are not fulfilled, the warrantor is liable. Although war- ranties were part of the common law,5 they were codified along with the rest of sales law when the various states adopted the Uniform Sales Act." Through this process of codification, warranties became identified with contracts and with statutory law in the early part of the 1900's. Section 15(2) of the Sales Act, and its successor, Section 2-314 of the Uniform Commercial Code, contain the warranty of merchantability which is of 2See Winterbottom v. Wright, 10 M. & W. 109, 152 Eng. Rep. 402 (1842); W. PROSSER, LAw OF TORTS § 96 (3rd ed. 1964). 3 217 N.Y. 382, 111 N.E. 1050 (1916). 4 W. PROSSER, LAw OF TORTS 648 (3rd ed. 1964). 5 See Rogers & Co.v. Niles & Co., 11 Ohio St. 48 (1860). 6 The UNIFORM SALES Acr was adopted inOhio in 1908, Act of May 9,1908, 99 Laws of Ohio 413-35. 1969] NOTES particular interest to consumers in product liability actions.7 The war- ranty of merchantability, unless excluded, is an implicit part of every con- tract between a buyer and a seller, and provides generally that the seller warrants that the goods are fit for the purpose for which such goods are normally used." This warranty is a term of the contract implied by law. Therefore if the consumer has the benefit of a warranty of merchanta- bility, the exercise of care by the seller will not relieve the seller of liabil- ity. The Uniform Sales Act however was not designed for the benefit of consumers, and the warranty of merchantability by its terms was limited to buyers and sellers as defined, thus requiring privity of contract." This requirement of privity was somewhat liberalized by the Uniform Commer- cial Code, which provides that members of the buyer's family and guests in the buyer's home may take advantage of any warranty existing between the buyer and the seller.10 Two other provisions of the commercial codes presented difficulty for the consumer who was injured by a defective product. One was the requirement that the defendant be given notice of the breach of implied warranty within a reasonable period of time," and the other was a provision which allows the seller to disclaim all warran- ties, including the warranty of merchantability, by giving appropriate no- tice. 2 C. Strict Liability In Tort Even with the possibility of two alternative remedies, negligence and the commercial code warranty of merchantability, the consumer at least in theory was not in a good position to collect if he was injured by a defec- tive product. Under negligence law the seller could escape liability by exercising reasonable care. Further, the consumer had to prove that the seller was negligent which was sometimes difficult even with the help of res ipsa loquitur. If the buyer brought his action against the retailer it was often discovered that the retailer was simply not negligent." If the 7 The UNIFOEm CONMfMER IAL CODE, hereafter cited as U.C.C., replaced the UNIFORM SALES Acr in Ohio in 1962, Act of May 18, 1961, 129 Laws of Ohio 13-183. 8 See U.C.C. § 2-314, OHIO REV. CODE ANN. § 1302.27 (Page 1962). Section 15(2) of the UNIFORM SALES Acr provided: Where the goods are bought by description from a seller who deals in goods of that description... there is an implied warranty that the goods shall be of merchantable quality. 9 See § 76 of the UNmIFOp SALES Acr for definitions of the terms buyer and seller as they are used in the Act 1OU.C.C. § 2-318, OHIO REV. CODE ANN. § 1302.31 (Page 1962). 11 UNIFOLM SALES ACT § 49; U.C.C. § 2-607 (3), Omo REV. CODE ANN. § 1302.65 (Page 1962). 2 1 UNIFOnit SALES Acr § 71; U.C.C. § 2-316, Omo REv. CODE ANN. § 1302.29 (Page 1962). 13 See text accompanying note 44 infra. OHIO STATE LAW JOURNAL [VOL 30 consumer tried to collect from the manufacturer, it was 'hard to prove that the manufacturer was negligent in his manufacturing process. The primary problem with the Uniform Sales Act warranty of mer- chantability was that very few consumers could obtain its benefit because of the requirement of privity of contract. If the father purchased food, only the father had privity of contract, not the members of his family, un- til this requirement was liberalized by the U.C.C. 4 Further there was always the chance that the warranty would be lost by a failure to give no- tice or by a disclaimer of the seller.